Michigan Advisory Opinions April 07, 1981: AGO 5866 (April 7, 1981)

Michigan Attorney General Opinions

1981.

AGO 5866.

You have requested my opinion on three questions that may be paraphrased as follows:

1. Is the voter approved maximum annual tax rate for community college districts included in either the 50 mill limitation or the 20 years durational limitation contained in Const 1963, art 9, Sec. 6?

2. May a school district seek authorization from the electors of the district to levy additional millage when property in an unchartered township in the district is currently taxed at more than 50 mills?

3. May the school district levy millage in the unchartered township which would result in the total levy exceeding the 50 mill constitutional limitation?

Const 1963, art 9, Sec. 6, as amended by the people in November, 1978 (the Headlee Amendment, effective December 22, 1978), in perinent part, provides:

'Except as otherwise provided in this constitution, the total amount of general ad valorem taxes imposed upon real and tangible personal property for all purposes in any one year shall not exceed 15 mills on each dollar of the assessed valuation of property as finally equalized. Under procedures provided by law, which shall guarantee the right of initiative, separate tax limitations for any county and for the townships and for school districts therein, the aggregate of which shall not exceed 18 mills on each dollar of such valuation, may be adopted and thereafter altered by the vote of a majority of the qualified electors of such county voting thereon, in lieu of the limitation hereinbefore established. These limitations may be increased to an aggregate of not to exceed 50 mills on each dollar of valuation, for a period of not to exceed 20 years at any one time, if approved by a majority of the electors, qualified under Section 6 of Article II of this constitution, voting on the question.

'The foregoing limitations shall not apply to taxes imposed for the payment of principal and interest on bonds approved by the electors or other evidences of indebtedness approved by the electors or for the payment of assessments or contract obligations in anticipation of which bonds are issued approved by the electors, which taxes may be imposed without limitation as to rate or amount; or, subject to the provisions of Section [sic] 25 through 34 of this Article, to taxes imposed for any other purpose by any city, village, charter county, charter township, charter authority or other authority, the tax limitations of which are provided by charter or by geneal [sic] law. . . .'

(Emphasis added.)

In answering your question, it is helpful to review the history of community college districts in this state. (fn1) Community college districts were first authorized and established pursuant to 1955 PA 188. (fn2) See Shaw v Macomb Community College, 389 Mich 69, 75-79; 204 NW2d 129, 132-134 (1973), which held that community college districts are not school districts.

In 1955 PA 188, Sec. 10, the Legislature provided that a community college district could be established by a vote of the people adopting 1955 PA 188. Pursuant to 1955 PA 188, Sec. 8, the trustees of a community college district could levy a tax not to exceed one mill.

1955 PA 188, Sec. 10 provided:

'Whenever the secretary of the county board of education shall be requested in writing by not less than 25 school electors of the counties to initiate proceedings for the organization of a community college district, as defined in this act, he shall refer the question of organizing the said community college district to the superintendent of public instruction for his approval: Provided, That if the proposed community college district involves more than 1 county, the request for approval may be submitted to the superintendent of public instruction by any one of the secretaries of the county boards of education involved. The superintendent of public instruction shall have authority to approve or deny the proposal to initiate proceedings to effectuate the proposed community college district organization.

His action in the matter shall be final. Upon petitions being filed at least 60 days prior to the next general election with the appropriate county clerk, together with the letter of approval from the superintendent of public instruction, as bear the signatures of 10% of the electors of the said county, the foregoing act shall be submitted to the electors of the said county. The county clerk shall call a special election in said county, to be held within 60 days of the filing of petitions bearing the signatures of 10% of the qualified electors of the said county, in which case the foregoing act shall be submitted to the electors of said county at said special election. It shall be the duty of the board of election commissioners of each contiguous county in which such a petition is filed to prepare ballots for the use of electors in all precincts in said county, in the manner required by law, which ballots, after setting forth the foregoing act in full, shall be in substantially the following form:

"Vote on act incorporating the community college district, the district including the county of _____, and such other contiguous counties as may join.

Shall the above act be approved and adopted?

Yes ( )

No ( ).'

'It shall be the duty of the board of election commissioners in each of the counties in which a vote is taken to deliver the ballots so prepared to the inspectors under the general election law. All votes cast upon said act shall be counted, canvassed, and returned in the same manner as is provided by law for counting, canvassing, and returning votes cast for state officers.' (Emphasis added.)

Thus, it is abundantly clear that the approval of 1955 PA 188 by the electors in a community college district resulted in the adoption of a statutory charter containing a maximum annual tax rate of one mill as set forth in 1955 PA 188, Sec. 8.

1964 PA 237 amended the title of 1955 PA 188 to read '[a]n act . . . to provide a charter for such districts. . . .' Further, 1964 PA 237 added Sec. 13 to 1955 PA 188 as follows:

'This act is for the purpose of implementing section 7 of article 8 of the state constitution [dealing with public community and junior colleges] and shall be construed as being the charter of community colleges established and operating hereunder, and as determining the tax limitation of such colleges in accordance with section 6 of article 9 of the constitution.'

1964 PA 237 also amended 1955 PA 188, Sec. 8 to provide:

'The board of trustees of each community college district may levy for the purposes heretofore specified as within the power of the board, a tax which shall not exceed the rate which has been heretofore or hereafter authorized by the qualified electors of the district or the rate derived through the previous adoption by the electors of the district of the provisions of Act No. 188 as enacted in 1955. The funds may be used for any and all purposes authorized except that the foregoing limitation shall not apply to taxes imposed for the payment of principal and interest on bonds or other evidences of indebtedness or for the payment of assessments or contract obligations in anticipation of which bonds are issued, which taxes may be imposed without limitation as to rate or amount. This limitation may be increased to not more than 5 mills if approved by a majority of the qualified electors voting on the question at any general or special election of the community college district. . . .'

1955 PA 188 was repealed and replaced by 1966 PA 331, supra, which carried forward the charter concept for community college districts. See the title of 1966 PA 331, supra, and Secs. 13, 33, 53, 144 and 191-194. Thus, the question becomes whether, under 1966 PA 331, supra, a community college district is a charter authority, the maximum annual tax rate of which is provided by charter, within the meaning of the nonapplication provision of the second paragraph of Const 1963, art 9, Sec. 6, supra.

In Kent County Board of Education v Kent County Tax Allocation Board, 350 Mich 327; 86 NW2d 277 (1957), the Supreme Court held that the school electors of the Kent County school district had voted to adopt a statutory charter (fn3) for special education purposes, to limit the annual tax for such purpose to one-half mill and the Court concluded that the statutory charter was an exception to the 15 mill limitation then contained in Const 1908, art 10, Sec. 21.

Here, the legislature has expressly provided a statutory charter which becomes effective upon the affirmative vote of the electors in the community college district. Further, the people of the community college district established, by vote, the maximum annual tax rate to be levied by the community college district. See 1966 PA 331, supra, Secs. 13, 33, 53 and 144 and Doan v Kellogg Community College, 80 Mich App 316, 321; 263 NW2d 357, 360 (1977).

Moreover, it should be noted that in Butcher v Township of Grosse Isle, 387 Mich 42; 194 NW2d 845 (1972) the concurring opinions of Justice Adams and Justice Williams, in listing counties and townships, unchartered, and school districts, as subject to the 15 and 50 mill limitations contained in the first paragraph of Const 1963, art 9, Sec. 6, supra, did not list community college districts as subject to these limitations. Further, the Michigan Supreme Court has discussed a community college election to establish a maximum annual tax rate that was not in the form of a constitutional tax rate limitation increase for a prescribed time period without any indication of constitutional infirmity. See West Shore Community College v Manistee County Board of Commissioners, 389 Mich 287; 205 NW2d 441 (1973).

On OAG, 1979-1980, No 5506, p 199 (June 12, 1979), it was concluded that a district library was not an authority, the tax limitations of which are provided by charter or by general law, under Const 1963, art 9, Sec. 6, supra. In reaching that result, it was noted that the district libraries act, 1955 PA 164, MCLA 397.271 et seq; MSA 15.1780(1) et seq, did not contain any tax limitation. Here, in contrast, 1966 PA 331, supra, Sec. 144 does contain a five mill tax limitation beyond which the voters may not approve additional millage. It was also observed that a district library was not a separate body corporate and it did not impose directly a prescribed tax rate. In contrast, community college districts are bodies corporate and the boards of community college districts levy a tax rate within the maximum annual tax rates prescribed by the voters of the respective community college districts but not to exceed the statutory five mill ceiling. See 1966 PA 331, supra, Secs. 103 and 144.

The legislature, first by 1955 PA 188, as amended by 1964 PA 237, Sec. 13 and then by 1966 PA 331, supra, Sec. 191, has consistently interpreted Const 1963, art 9, Sec. 6, supra, as authorizing it to permit community college districts to operate with statutory charters that contain the maximum annual tax rates prescribed by the electors in establishing the community college districts. The contemporaneous and subsequent interpretation of a constitutional provision by the legislature is entitled to weight by a court in construing the constitutional provision. Smith v Auditor General, 165 Mich 140, 144; 130 NW 557, 558 (1911). Thus, it must be concluded that a community college district is a charter authority, the tax limitations of which are provided by charter within the meaning of the second paragraph of Const 1963, art 9, Sec. 6, supra.

Therefore, it is my opinion that the voter approved maximum annual tax rate for community college districts is not within either the 50 mill limitation or the twenty year durational limitation contained in Const 1963, art 9, Sec. 6, supra.

This office has previously addressed the last two questions in a letter opinion dated September 28, 1977, addressed to Mr. Anders B. Tingstad, Jr., Prosecuting Attorney of Gogebic County, and OAG, 1949-1950, No 839, p 35 (October 21, 1948). In the letter opinion to Mr. Tingstad, it was concluded that a school district was not prohibited from seeking authorization from the electors for an increased millage, even though the increased millage would raise the total millage beyond the 50 mill constitutional limitation. The opinion also concluded that, while the district could seek the authorization, it could not levy any portion of millage that would cause the taxation of property in the unchartered township in excess of the 50 mill limit contained in Const 1963, art 9, Sec. 6. Therefore, the answer to your second question is in the affirmative although this answer is subject to the answer to your third question.

Your last question poses the problem of two or more governmental units, within an unchartered township, having authorized millages which, when totalled, exceed the 50 mill limitation. The question then is which governmental unit may lawfully levy its full millage? This was answered in OAG, 1949-1950. No 839, supra, on page 36, where it was stated:

'If the school district, having voted its millage increase, acts first in providing a levy within that increase, then the township if in need of extra millage must take what is left out of its previously voted 35 mill increase. This is so because taxes must be spread uniformly within an assessing district, and the school district is part of the township territory.' (Citations omitted.)

Notwithstanding the language quoted above, all governmental units within an unchartered township levy their millage on the same day, December 1. Thus, the decisive factor is which governmental unit first receives authorization from the electorate to increase its millage. Whatever may be left within the 50 mill limitation is then available to the next voting governmental unit.

To the extent that this situation may be inequitable, legislative relief is the only recourse. Your last question is answered in the negative.

Frank J. Kelley

Attorney General

1. This opinion does not apply to school districts which operate community college departments pursuant to 1976 PA 451, part 25, MCLA 380.1601 et seq; MSA 15.41601 et seq or to a community college district existing pursuant to 1966 PA 331, Ch 5, MCLA 389.81 et seq; MSA 15.615(181) et seq. Further, it does not apply to ballot propositions specifically authorizing tax levies for a prescribed number of years.

2. 1955 PA 188 was subsequently repealed by 1966 PA 331, MCLA 389.1 et seq; MSA 15.614(101) et seq, Sec. 194.

3. 1955 PA 269, Secs. 309 to 327.